VOID AND VOIDABLE MARRIAGES/ ANNULMENT VERSUS DECLARATION OF

NULLITY.
VOID MARRIAGES
Under the Family Code, the bases for determining what constitute void marriages
are as follows
Lack of one or more of the essential and formal requisites of marriage
Reasons of public policy and
Special cases and situations
(e.g. psychological incapacity)
Under the Art. 35 of Family Code, the following are marriages that are
void from the beginning:
Those contracted by any party below eighteen years of the age even with the
consent of parents or guardians;
Those solemnized by any person not legally authorized to perform marriages
unless such marriages were contracted with either or both parties believing
in good faith that the solemnizing officer that the legal authority to do so;
Those solemnized without a license, except marriages of exceptional
character;
Those bigamous or polygamous marriages not falling under Article 41;
Those contracted through mistake of one contracting party as to the identity
of the other;
Those subsequent marriages that are void under Article 53.
VOIDABLE MARRIAGES
In accordance with Art. 45 of the Family code, the following are the
voidable marriages:
Either party is between 18 to 21 years of age and no parental consent was
obtained, unless the such party freely cohabited with the other as husband
and wife after reaching the age of 21.
Either party was of unsound mind unless such party freely cohabited with the
other after coming to reason,
That the consent of either party was obtained through fraud, unless such
party, with full knowledge of the facts constituting fraud, freely cohabited
with the other as husband and wife.
That the consent of either party was obtained through force, intimidation or
undue influence, unless the same having disappeared, such party freely
cohabited with the other as husband and wife.
That either party was incapable of consummating the marriage (i.e.,
impotent) and such incapacity appears to be incurable

 That either party was afflicted with a sexually transmissible disease that is
serious and incurable (e.g. AIDS).
The following shall constitute fraud as shall give rise to an action for
annulment
Non-disclosure of a previous conviction by final judgment of the other party of
a crime involving moral turpitude;
Concealment by the wife of the fact that at the time of the marriage, she was
pregnant by a man other than her husband;
Concealment of a sexually-transmissible disease, regardless of its nature,
existing at the time of the marriage; or
Concealment of drug addiction, habitual alcoholism, homosexuality or
lesbianism existing at the time of the marriage.
Differences Between Void and Voidable Marriages
As to legal effect, void marriages are inexistent from the beginning and thus
produce no legal effects. They are not capable of ratification and children
born thereof as illegitimate. Upon a declaration of nullity, the properties of
the parties are settled in accordance with the rules on co-ownership.
Voidable marriages, on the other hand, are valid until annulled and may be
ratified and cleansed of its defects by cohabitation. The remedy of
annulment, however, may be barred by prescription. Thus, in case of fraud;
force, violence, intimidation or undue influence; impotence; and affliction of a
serious, incurable sexually transmitted disease, the action for annulment
must be brought within 5 years by the injured spouse from discovery of the
fraud, or from the cessation of the force, violence, intimidation or undue
influence or from date of the marriage, in case of impotence and affliction
with serious, incurable STD, as the case may be. Ratification of a voidable
marriage shall bar an action for annulment even if the prescription period
has not yet expired.
ART. 36. DECLARATION OF NULLITY
As some people may have had the chance to comment, the closest thing to a
divorce in the Philippines would be a declaration of nullity under Art. 36 of
the Family Code which is premised on the psychological incapacity of one of
the parties to comply with the essential marital obligations of marriage, even
if such incapacity becomes manifest only after the marriage. It is referred to
as a declaration of nullity as the law presumes that the marriage is void
from the beginning and thus needs a formal declaration that it is indeed void.

This concept of psychological incapacity is not new to us as it is based on

canon law. It does not relate to a persons mental capacity or physical
condition, but relates rather to some psychological disorder that renders the
person unable to comply with the essential obligations if marriage for
example, the conjugal act, the community of life and love, mutual help,
procreation, rearing and education of children, and does not refer to
isolated idiosyncrasies

Under the precedentsetting case of Republic of the Philippines vs. Molina

This incapacity must be, among others:
Grave enough to bring about an inability to assume the essential obligations
of marriage
Incurable or permanent
Present at the time of the marriage even if its effects became manifest after
the marriage
Medically or clinically identified and proven by experts

Divorce in the Philippines and Judicial Recognition of Foreign Divorce

Decree
Divorce is not allowed in the Philippines and divorce secured anywhere by a Filipino
is not recognized in this jurisdiction. If youre a Filipino, it doesnt matter where you
get a divorce: such divorce is invalid/void in the Philippines. This is because under
the nationality principle (Art. 15, Civil Code), all Filipinos where they may be in the
world are bound by Philippine laws on family rights and duties, status, condition,
and legal capacity. In certain instances, however, a divorce validly secured abroad
by a non-Filipino may be recognized here in the Philippines.

Is there a legal provision that recognizes divorce in the Philippines?

Yes. On 6 July 1987, President Corazon Aquino signed Executive Order No. 209,
otherwise known as the Family Code. Article 26 of this law, which took effect on 3
August 1988, reads:
All marriages solemnized outside the Philippines in accordance with the laws in
force in the country where they were solemnized, and valid there as such, shall also
be valid in this country, except those prohibited under Articles 35, 37, and 38.
On 17 July 1987, Executive Order No. 227 was signed into law, amending Article 26
of the Family Code, among others. Article 26 now reads:
ART. 26. All marriages solemnized outside the Philippines in accordance with the
laws in force in the country where they were solemnized, and valid there as such,
shall also be valid in this country, except those prohibited under Articles 35(1), (4),
(5) and (6), 36, 37 and 38.
Where a marriage between a Filipino citizen and a foreigner is validly celebrated
and a divorce is thereafter validly obtained abroad by the alien spouse capacitating
him or her to remarry, the Filipino spouse shall have capacity to remarry under
Philippine law.

What are circumstances that would make Article (Family Code) applicable?
We have a basic discussion on Article 26 of the Family Code. Included in that
discussion are the two elements that must be shown before the second paragraph
of Article 26 is applied:

There is a valid marriage that has been celebrated between a Filipino citizen and a
foreigner; and
A valid divorce is obtained abroad by the alien spouse capacitating him or her to
remarry.

Is this provision applicable to former Filipinos?

Yes. Article 26 was later interpreted by the Supreme Court to include cases involving
parties who, at the time of the celebration of the marriage were Filipino citizens, but
later on, one of them becomes naturalized as a foreign citizen and obtains a divorce
decree. The reckoning point is not the citizenship of the parties at the time of
marriage, but their citizenship at the time a valid divorce is obtained abroad by the
alien spouse capacitating the latter to remarry. (Philippines vs. Orbecido III, G.R. No.
154380, 5 October 2005).

Article 26 provides that the divorce must be secured by the foreignerspouse. What if the foreigner-spouse continually maltreats the
Filipino/Filipina spouse, isnt it unfair that the Filipino/Filipina cant
initiate divorce?
It may be unfair, but thats the law, consistent with the States policy of not allowing
divorce for Filipinos. This doesnt mean, however, that the Filipino/Filipina has no
other recourse. If the circumstances fall under the grounds for
annulment/declaration of nullity, then the marriage could still be annulled or
declared null and void from the beginning.

If theres already a divorce validly secured abroad (by the foreignerspouse or the Filipino spouse who became a foreign citizen, losing his/her
Filipino citizenship in the process), can the Filipino spouse immediately
remarry?
No. The existence of a valid divorce decree, however, does not automatically entitle
the Filipino to remarry in the Philippines. The foreign divorce decree must be
judicially recognized in the Philippines. This means that the proper action or petition
must be filed in a Philippine court. For purposes of re-marriage, the divorce validly
secured abroad is not automatically recognized here in the Philippines. Any
subsequent marriage is considered VOID from the very beginning.

Isnt it enough that I already forwarded the divorce decree to the

Philippine Embassy (or the Department of Foreign Affairs) and the
National Statistics Office (NSO)?
No. The foreign divorce decree must be recognized here in the Philippines; a process
which may only be done through the courts.

Why should we waste money in filing a petition in court for the recognition
of the divorce decree?

This is the requirement of law, unfortunately. The divorce decree must be proven,
just like any fact, in court. The presentation of the divorce decree is insufficient.
Proof of its authenticity and due execution must be presented. This necessarily
entails proving the applicable laws of the jurisdiction where the foreigner-spouse
(who could be a former Filipino) is a national. One of the requirements under Article
26 is that the decree of divorce must be valid according to the national law of the
foreigner.